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UNITED STATES v. SCHIFFER

October 28, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
NIKOLAUS SCHIFFER, Defendant.



The opinion of the court was delivered by: VAN ANTWERPEN

 VAN ANTWERPEN, J. October 28, 1993

 This is a non-jury civil action under section 340(a) of the Immigration and Nationality Act of 1952 to revoke the citizenship of defendant Nikolaus Schiffer, who was a member of the Waffen -SS Death's Head Battalion during World War II. We have jurisdiction under 8 U.S.C. § 1451 and 28 U.S.C. § 1345. This court previously decided certain pre-trial motions in an Opinion and Order dated February 25, 1992. United States v. Schiffer, 798 F. Supp. 1128 (E.D. Pa. 1992).

 In a trial beginning on March 16, 1993, this court heard seven days of testimony regarding plaintiff's claims and the defendant's defenses. After a careful review of the extensive record in this case, including the trial transcript, the exhibits and the parties' post-trial memoranda and briefs, this court issued an eighty-two page opinion which granted judgment for the plaintiff. In our August 25, 1993 Decision and Order, United States v. Schiffer, 1993 WL 326114 (E.D.Pa. filed August 25, 1993) ("Decision"), this court made one hundred sixty-one findings of fact with citations to the relevant portions of the record, and the following conclusions of law:

 A. Expatriation

 1. Nikolaus Schiffer was born in the United States and, as a result, acquired United States citizenship.

 2. Nikolaus Schiffer knew at least from the time that he was a teenager that he was a United States citizen. He also knew that as a United States citizen he was exempt from Romanian service.

 3. Nikolaus Schiffer voluntarily joined the Romanian army and he did so with the specific intent to relinquish the United States citizenship he acquired at birth.

 4. Nikolaus Schiffer voluntarily relinquished his United States citizenship pursuant to 8 U.S.C.

 § 1481(a)(3). (Note: We believe that Schiffer's voluntary service in the Waffen -SS alone also would have been sufficient to relinquish the United States citizenship he acquired at birth).

 B. Denaturalization

 1. Nikolaus Schiffer procured his naturalized United States citizenship illegally. 8 U.S.C. § 1451(a).

 (a) Nikolaus Schiffer lacked the good moral character required for citizenship as a result of his voluntary service in the Waffen -SS Death's Head Battalion, participation in two death marches and armed guarding of prisoners forced to perform slave labor under dangerous and subhuman conditions. 8 U.S.C. § 1427(a)(3).

 (b) Nikolaus Schiffer lacked the good moral character required for citizenship as a result of the false testimony he gave in response to Question Nos. 10 and 23 on Form N-400 with the subjective intent of obtaining immigration benefits. 8 U.S.C. § 1451(a).

 2. Nikolaus Schiffer procured his naturalized citizenship by willful concealment and misrepresentation of a material fact. 8 U.S.C. § 1451 (a).

 (a) Nikolaus Schiffer willfully misrepresented and concealed his arrest as a war crimes suspect.

 (b) Disclosure of Schiffer's arrest as a war crimes suspect would have resulted in denial of citizenship since it would have revealed his Waffen -SS Death's Head Battalion service, his false testimony and his lack of good moral character.

 3. Nikolaus Schiffer's citizenship must be revoked. 8 U.S.C. § 1451(a).

 Opinion, at 80-81. The Decision treated the relevant legal issues with a thorough review of the applicable law and pertinent facts. On August 25, 1993, we ordered that this court's order of August 13, 1958, admitting defendant to citizenship, be set aside and defendant's Certificate of Naturalization be canceled and surrendered.

 Defendant now moves pursuant to Federal Rule of Civil Procedure 59(a) for a New Trial and/or Amendment of Judgment, and pursuant to Rule 52(b) for Amended Findings of Fact and Conclusions of Law. *fn1" We discuss defendant's failure to comply with Local Civil Rule 20(E) in Section I, defendant's failure to meet legal standards under Rule 59(a)(2) in Section II, defendant's Motion to Amend Findings of Fact and Conclusions of Law in Section III, and we conclude in Section IV.

 I. FAILURE TO COMPLY WITH LOCAL RULE 20(E)

 Defendant filed his Motions for a New Trial and/or Amendment of Judgment and for Amended Findings of Fact and Conclusions of Law on September 4, 1993. Local Civil Rule 20 of the U.S. District Court for the Eastern District of the Pennsylvania governs the court's requirements for motion practice. Subsection (e) covers the procedures required for post-trial motions. Local Rule 20(e) provides that:

 
Within ten (10) days after filing any post-trial motion, the movant shall either (a) order a transcript of the trial by a writing delivered to the Court Reporter Coordinator, or (b) file a verified motion showing good cause to be excused from this requirement.

 The rule further provides that unless the movant orders a transcript in the manner stated, or is excused from obtaining a transcript, the movant's post-trial motion may be dismissed for lack of prosecution.

 Defendant did not comply with either requirement of Local Rule 20(e). The Court Reporter Coordinator has confirmed that, as of October 20, 1993, defendant had still neglected to order a transcript of the trial as required under subsection (a). *fn2" Alternatively, within ten (10) days of filing his motions, defendant could have petitioned this court to be excused from ordering the transcript, for good cause, under subsection (b). Defendant simply ignored this court's procedures. While defendant may have had good cause in this case, the question of good cause is one that the court must answer upon verified motion of the movant.

 Our courts frequently dismiss post-trial motions based solely on noncompliance with Local Rule 20(e). *fn3" These cases acknowledge that the sanction of dismissal for lack of prosecution is indeed a harsh penalty for noncompliance, especially where it might have been an innocent oversight. However, the Third Circuit Court of Appeals has repeatedly singled out Local Rule 20(e) for special consideration. See generally, Hewlett v. Davis, 844 F.2d 109 (3rd Cir. 1988) (motion dismissed for lack of prosecution under Local Rule 20(e)); Smith v. Oelenschlager, 845 F.2d 1182 (3rd Cir. 1988) (dismissal proper under Local Rule 20(e) where movant made timely transcript request to the court and not to Court Reporter Coordinator); Frangos v. Doering Equipment Corp., 860 F.2d 70 (3rd Cir. 1988) (motion dismissed for lack of compliance with Local Rule 20(e)).

 During customary motion practice, dismissal of a case as a sanction must be a sanction of "last, not first, resort." Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863 at 869 (3rd Cir. 1984). However, ordinary motions during the course of a civil lawsuit must be distinguished from post-trial motions. In Smith v. Oelenschlager, 845 F.2d 1182 at 1184 (3rd Cir. 1988), the Third Circuit Court of Appeals noted that the judges of the Eastern District deliberately framed Local Rule 20(e) in mandatory terms. The rule reflects the notion that the interests of justice are best served by permitting only those post-trial motions which conform to certain strict requirements. Short, inflexible deadlines are essential in post-trial motion practice; otherwise, the same litigation could go on and on for years even after the court has entered judgment. The "harsh" approach of Local Rule 20(e) preserves the integrity of civil judgments and is consistent with the overall post-trial scheme of the Federal Rules of Civil Procedure.

 In Hewlett v. Davis, the Third Circuit stated that the power to dismiss for lack of prosecution under Local Rule 20(e) may be exercised without notice or opportunity to be heard, and rests solely within the discretion of the trial court. Hewlett, supra, at 114 (citing Link v. Wabash Railroad Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 1388, 8 L. Ed. 2d 734 (1962)). Thus, it is properly within the discretion of this court to dismiss all of defendant's post-trial motions for lack of compliance with Local Rule 20(e). The court understands, however, the magnitude of its August 25, 1993 Decision and, although we will dismiss this motion for lack of compliance with our Local Civil Rule, we will also address the substantive claims which form the basis of defendant's motions.

 II.

 FAILURE TO MEET LEGAL STANDARDS UNDER ...


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